Conchman v. Wright

1. Agreements. A verbal agreement to give and accept security upon personal property is valid between the parties, although of no validity as against creditors and subsequent purchasers in good faith.

Error from Washington county district court. Tried below before Savage, «J. The cause of demurrer is for the reason that the complaint did not state facts sufficient to constitute cause of action against the defendant. By the demurrer the defendant admits that the facts and allegations in the petition are true. This brings us square to the argument of the proposition whether a verbal promise or pledge of indemnity, made by a person who receives benefit therefrom, can be enforced by a person who, upon the promise of such indemnity, has been induced to become responsible for the promisor, and has been compelled to pay money. We think the authorities are plain upon this point, and fully sustain us in the assertion that such promises of indemnity (and especially where the promisor has been benefited thereby) can be sustained and the promisor compelled to comply. Garner v. Hudgins, 46 Mo., 399. Harrison v. Sawtel, 10 Johns., 242. 1 Hilliard on Torts, Sec. 8. Anthony v. Herman, 14 Kan., 494. Grant v. Bendery, 15 Kan., 236. Harrison v. Simpson, 17 Kan., 508. In an action of replevin, under the code, it must appear that the plaintiff was, at the commencement of the action, the owner of the property, or had such special property or interest therein — stating the facts in relation thereto — as to entitle, him to the immediate possession of the same. Code, Sections 182 and 1034. The petition in this case shows that he had neither. The petition shows that he was not the owner. If it were contended that the transaction amounted to a sale to Conchman, it was void, as there was no delivery, and the consideration exceeded fifty dollars. General Statutes, page 393, Section 9. It is also apparent on the face of the petition that the plaintiff had no mortgage upon the property. A verbal mortgage is unknown to our laws; and if such verbal mortgage could be created, it would be void, unless there was a delivery and a continuous possession of the chattel in the mortgagee. It has been repeatedly decided by this court — and all recent decisions are to the same effect — that a chattel mortgage is a sale, which transfers the legal title to the mortgagee, and consequently would be void, if the consideration exceeded fifty dollars. General Statutes, page 393, Sec. 9. The authorities cited by plaintiff in error have no application to the case whatever. They all arose under that section of the statute of frauds regulating the liability of a party on his verbal promise to answer for the debt or default of another, and affirm what has been accepted as the law, at least since the case of Leonard v. Vredenburg, reported in 8th Johnson, Ch. Rep. page 29, and ' are to the effect that if the promise is original, and a consideration moves to the promisor, he is bound, because, while'paying the debt of another, he is at the same time subserving some interest of his own. Leonard v. Vredenburg, 8 John., Ch. 29. Mallory v. Qillett, 21 N. Y., 412.